ABSTRACT: Historically cartel behavior in Australia has been subject to a civil
penalty regime under the Trade Practices Act 1974 (“the Act”). Since
the 1974 enactment of the legislation, price fixing and similar
anticompetitive contracts, arrangements, or understandings have been
treated as per se illegal under the Act. However, the penalties for
breaching these provisions were historically quite low until 2007 when
the civil penalties were increased significantly. There is now a very
determined effort on the part of the new Federal Labor Government to
introduce criminal sanctions against serious cartels and to bring
Australia in line with the developments in the U.S., Canada and in
other countries.

The relevant regulator, the Australian
Competition and Consumer Commission (“ACCC”), has actively pursued
stronger enforcement powers and harsher sanctions to address cartel
conduct. Graeme Samuel, Chairman of the ACCC, once described cartels as
a ‘cancer on our economy’, stealing ‘billions of dollars…from business,
from taxpayers and ultimately from…consumers’.

This paper
considers both the existing civil regime for enforcing prohibitions on
cartel behavior, as well as noting certain aspects of the foreshadowed
criminal sanctions.